1. Teacher recruitment — Eligibility qualification dispute — Application of proviso to Rule 266(3) of Rajasthan Panchayati Raj Rules, 1996 regarding the cut-off date for acquiring educational qualifications. (Para 1 , 2 )
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2019 Supreme(SC) 1013
SUPREME COURT OF INDIA
K.M. JOSEPH, SANJAY KISHAN KAUL, JJ.
The State of Rajasthan and Others – Appellants
Versus
Trilok Ram – Respondent
Civil Appeal No. 7215 of 2019, S.L.P. (C) No. 30933 of 2017
Decided On : 12-09-2019
Important Points
IMPORTANT POINTS
In an amendment the substituted provision undergoes a repeal (including proviso) and, there is a re-enactment through the newly inserted provisions.
Advertisement cannot be opposed to statutory rule.
In an amendment the substituted provision undergoes a repeal (including proviso) and, there is a re-enactment through the newly inserted provisions.
Advertisement cannot be opposed to statutory rule.
Subject
Recruitment and Employment - Teacher Recruitment
Act Referred
RAJASTHAN PANCHAYATI RAJ ACT: S.102
RAJASTHAN PANCHAYATI RAJ RULES: R.266(3)
RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT: S.23(1)
RAJASTHAN PANCHAYATI RAJ RULES: R.266(3)
RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT: S.23(1)
Headnote
(a) Rajasthan Panchayati Raj Rules, 1996 - Rule 266(3) and amendment on 11.5.2011; Proviso - main provision and proviso operate in different fields - Main provision, subsection 3, deals with qualifications - Proviso providing a window of opportunity to those while not being qualified as such, were in the process of acquiring qualification by having appeared in the examination - Proviso first added in 2004 - Amendment in 2006 doing away with the proviso, but rule making authority again inserting it - Amendment of 2011 again doing away with the continued availability of the beneficial provisions of the proviso - Held, the proviso ceased to exist. (Para 14, 15, 23)
(b) Interpretation of statute - Substitution by amendment - Substituted provision undergoes a repeal (including proviso) and, there is a re-enactment through the newly inserted provisions. (Para 16)
(c) Service law - Recruitment - Advertisement - Cannot be opposed to statutory rule. (Para 23)
Facts of the case:
The appellant issued an advertisement on 11.8.2013 for recruiting Teachers Grade III (Level I and II) in the various Zila Parishads in the State of Rajasthan. The writ petitioner-respondent who was undergoing the B.S.T.C. Course (B.S.T.C. is an essential qualification stipulated) applied pursuant to the advertisement. The result of the recruitment examination was declared on 17.5.2014. The respondent secured 158.41 marks. The respondent was called for verification of documents. Though the respondent secured marks which was more than the cut-off, his name was not found in the Select List dated 16.3.2015. The writ petition came to be filed seeking to quash final select list dated 16.3.2015 and to direct the appellants to declare the selection list of the respondent as marks secured were higher than the cut-off in the respective category. Finally, direction to appoint the respondent to the post of Teacher Grade III (Level I) with all consequential benefits was sought. The Single Judge dismissed the writ petition.
In appeal filed by the respondent the division Bench allowed the writ petition.
Finding of the Court:
The proviso to Rule 266(3) ceased to exist after amendment of 2011.
Result: Appeal allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s): Mr. Satyendra Kumar, Adv. Mr. Harsha Vinoy, Adv. Mr. Shailja Nanda Mishra, Adv. Mr. Arpit Prakash, Adv. Mr. Milind Kumar, AOR
For the Respondent(s) Ms. Archana Pathak Dave, AOR Mr. Gp. Capt. Karan Singh Bhati, AOR Mr. Ajay Vikram Singh, AOR Ms. Priyanka Singh, adv. Mr. Kamlesh Anand, Adv.
For the Petitioner(s): Mr. Satyendra Kumar, Adv. Mr. Harsha Vinoy, Adv. Mr. Shailja Nanda Mishra, Adv. Mr. Arpit Prakash, Adv. Mr. Milind Kumar, AOR
For the Respondent(s) Ms. Archana Pathak Dave, AOR Mr. Gp. Capt. Karan Singh Bhati, AOR Mr. Ajay Vikram Singh, AOR Ms. Priyanka Singh, adv. Mr. Kamlesh Anand, Adv.
Table of Contents
2. Whether substitution of a rule repeals an associated proviso — Conflict between advertisement conditions and statutory rules regarding the date for determining eligibility qualifications. (Para 6 , 7 , 9 , 10 )
3. Substitution of a provision entails repeal of the old and enactment of the new — Legislative history confirms the proviso was not re-inserted after the 2011 substitution. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 )
4. Substitution of a statutory provision results in the repeal of the earlier provision and its replacement, including any integrated provisos not expressly saved or re-enacted. (Para 16 , 17 , 18 , 21 )
5. Appeal allowed and the impugned judgment of the High Court set aside. (Para 24 )
6. What is the legal effect of the substitution of a statutory provision?
The process of substitution consists of two steps: first, the old rule is made to cease to exist through repeal, and second, a new rule is brought into existence in its place. (Para 16 , 17 )
7. Does a proviso survive the substitution of the main provision to which it is attached?
No, because a proviso is an integral part of the provision. Substitution results in the repeal of the entire provision, including the proviso, unless the proviso is expressly saved or subsequently re-inserted by the rule-making authority. (Para 18 , 21 )
8. Can an executive instruction or advertisement override a statutory rule?
An executive instruction cannot supplant a statutory rule. However, if the statutory rule or proviso has been repealed by substitution, an advertisement's conditions are valid if they remain in harmony with the current statutory rules. (Para 4 , 23 )
JUDGMENT :
K.M. JOSEPH, J.
1. Leave granted.
2. The appellant issued an advertisement on 11.8.2013 for recruiting Teachers Grade III (Level I and II) in the various Zila Parishads in the State of Rajasthan. The advertisement stipulated the last date for submission of the application form as 4.9.2013. The applicants were to fulfil the requisite educational qualifications as on the last date of the submission of the application form. The writ petitioner who is the respondent (hereinafter referred to as “the respondent”) was undergoing the B.S.T.C. Course (B.S.T.C. is an essential qualification stipulated). He, however, applied pursuant to the advertisement. The appellant discovered during the process of verification that the respondent was not holding the requisite qualification of B.S.T.C. as on the last date for submission of application form. The respondent appeared on the basis of an order passed by the High Court permitting him and others to submit their application however, it was subject to the decision in SBCWP No. 10845/2013. Thereafter, he completed his B.S.T.C. second year course and the results were also declared. The result of the recruitment examination was declared on 17.5.2014. Finding that the result of the examination in regard to the respondent and another was not uploaded on the official website, they filed writ petition No. 244/2015. An interim order was passed in the said writ petition to bring the result of the petitioner in a sealed cover before the Court. The High Court further directed that the results to be declared. The respondent secured 158.41 marks. The respondent was called for verification of documents. Though the respondent secured marks which was more than the cut-off, his name was not found in the Select List dated 16.3.2015. After representing and not eliciting the required response, the writ petition which led to the present appeal (W.P. No. 2801/2015) came to be filed seeking to quash final select list dated 16.3.2015 and to direct the appellants to declare the selection list of the respondent as marks secured were higher than the cut-off in the respective category. Finally, direction to appoint the respondent to the post of Teacher Grade III (Level I) with all consequential benefits was sought. The appellant filed counter affidavit. The learned Single Judge dismissed the writ petition.
In appeal filed by the respondent, by the impugned order, however, the division Bench allowed the writ petition.
3. The controversy which falls to be resolved by us is whether the High Court was right in holding that the proviso to Rule 266(3) of the RAJASTHAN PANCHAYATI RAJ RULES , 1996 (hereinafter referred to as “the Rules”) which was relied upon by the respondent remained intact despite the substitution of Rule 266(3) by Notification dated 11.5.2011. The proviso read as follows:
“Provided further that the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post of primary and upper primary school teacher but he shall have to submit proof of having acquired the said educational qualification to the District Establishment Committee before the declaration of result of the said examination.”
4. In short, if the proviso held the field, the respondent would become eligible and qualified for selection and appointment based on merit. If the proviso on the other hand was not available, the respondent would not be eligible for the reason that as contended by the appellants, as on the last date for filing application the respondent had admittedly not passed the B.S.T.C. examination. The respondent had actually appeared for the examination and taking shelter under the proviso, the respondent claimed to be qualified on the terms thereof. The High Court after referring to the amendment dated 11.5.2011 to clause (3) of Rule 266, dwelt upon the purpose of a proviso. The Court adverted to case law on the point. It was found that there is no rule that the proviso must always be restricte
